A comment publsihed in Shanghai Daily

Does the free downloading of music on the Internet hurt or helpthe music copyright owner?

There is a grinding debate on this issue despite a latestcourt's decision that declared downloading music free on theInternet is illegal.

On may 10, the Shanghai No. 2 Intermediate People's Courtordered a leading literature Website to pay 15,000 yuan (US$1,800)in compensation to Warner Music, the Taiwan branch of Time Warner,for having offered free downloading of certain Warner musical workswithout prior consent or royalty payments.

The warner Music versus Rongshuxia.com case brings homethe debate over whether copyright should be protected and whetherfree trial listening of music on the Internet ispositive promotion of a copyright owner's product or a violation ofits copyright.

Despite the judgment in its favor, Warner Music said itwas not

satisfied with the result and that it would appeal to a highercourt.

The pending case would be important for about 7,000Chinese

Websites, which need to know whether or how to pursue freedownloading services.

China amended its copyright law in 2001 to endorse the"right of

dissemination through Internet." It means that a copyrightowner has

the right to spread their work on the Internet. In otherwords, music dispersed on the Web enjoys copyright protection, asdo works

would not have developed so fast if online surfers had notshown great interest in its convenience.

Research shows that what attracts most Web surfers is itsfree

access to various and vast resources difficult to findelsewhere.

Many music fans say they just like the easiness with whichthey can download music for trial listening. If the music is good,then it's more likely they will buy the copyright protected CD.After all, sound quality is much inferior on the Internet.

Aside from concerns over sound quality, music fans hope tobuy

authentic CDs with their idol's liner notes and photos.

From this perspective, both free downloaded music and CDsare not identical products. Getting the first for free should notseverely hurt the sales of the latter.

In this sense, free music downloaded on the Internet ismore like promoting a song than a violation of its copyright.

Defendant rongshuxia was the first Chinese Website to besued for copyright violation. In 2000, Rongshuxia won its caseagainst China Social Publishing House for publishing its onlineliterature without prior consent.

That case was rightly decided. The publication ofRongshuxia's

copyrighted literature works absolutely reduced readers'willingness to register on Rong-shuxia's Website for the samecontent.

In the Warner Music case, however, it is inherentlydifficult to

conclude that free trial listening will absolutely affect CDsales.

But legal scholars argue the other way, citing theamended

Copyright Law that adopts "the right of dissemination throughthe

Internet." This is actually an exclusive right reserved forcopyright owners.

As such, legal experts say Rongshuxia has infringed thecopyright owner's right without prior consent or royaltypayment.

Well, that's what the law says. But is the law backed byrational reasoning? It's hard to say.

Intellectual property law gives authors some monopolyrights to

encourage them to create and spread good work. But thismonopoly should not go unchecked.

Lawrence lessig, a renowned professor of law at StanfordLaw

School, criticizes abused protection of intellectual propertyright. If too much is given to copyright owners, it stands to limitpeople's rational use of intellectual products.

As the professor argues, free downloads for triallistening

(sampling content before buying it) and non-profit purposesdoes not

harm the copyright owner.

As a matter of fact, this kind of free downloaded musiccan never be prohibited. In the US, CD makers sued the famousWebsite Napster in 2001 for its free music download service, andthe court ordered the Website to be closed. However, Kazaa andother Websites with the same service emerged. The number of usershas exceeded 7 million, far more than the 2million users of Napster.

Another legal dispute is whether a hyperlink to freedownload sites constitutes an infringement.

Some experts think that only those which provide downloadson their own servers constitute an infringement, and thoseproviding a hyperlink should be free of copyrightinfringement violations.

Otherwise, search engines such as Google and Baidu will bejudged to be big violators of copyrights, which is unfair.

On april 22, in a case where Chinamp3.com was sued forcopyright

violation, the Beijing No. 1 Intermediate People's Courtdecided that hyperlinks provided by Chinamp3.com were not justordinary hyperlinks, but were hidden in such a way that users couldnot identify them as hyperlinks. Visitors would normally think itwas Chinamp3.com's server that provided the free downloads.